Campbell v. Indianapolis & V.R. Co.

• Decision Date: 26 April 1887
• Citation: 110 Ind. 490,11 N.E. 482
• Parties: Campbell v. Indianapolis & V. R. Co.
• Court: Indiana Supreme Court

110 Ind. 490

11 N.E. 482

Campbell

v.Indianapolis & V. R. Co.

Supreme Court of Indiana.

April 26, 1887.

Appeal from superior court, Marion county.

John C. Brush and Adams & Newby, for appellant. Samuel O. Pickens, for appellee.

HOWK, J.

This suit was commenced by appellant, Campbell, against appellee, in the Morgan circuit court, on the nineteenth day of November, 1883. The object of the suit, as stated in appellant's complaint, was to recover the possession of a strip of land 100 feet wide, and 1,708 feet long, particularly described, in Morgan county, occupied and used by appellee for its road-bed and right of way for 14 years then last past, whereof it was alleged that appellant was the owner in fee-simple and entitled to the possession, and that appellee had wrongfully taken and unlawfully held the possession thereof for the period aforesaid, to appellant's damage, etc. Appellee answered by a general denial of the complaint, and also filed a counter-claim or cross-complaint, wherein it stated its title to and claim upon the strip of land described in the complaint, and alleged that appellant's demand therefor was a cloud upon its title, and prayed that the same might be quieted. Issue was joined on such counterclaim or cross-complaint by answer in general denial. On appellant's application the venue of the action was changed to the court below. There the issues joined were tried at special term, and a finding was made against appellant on his complaint, and in favor of appellee on its counter-claim or cross-complaint; and over his motion for a new trial the court adjudged and decreed that appellant take nothing by his suit herein, and that appellee's title to the strip of land in controversy be quieted, etc. On appeal the general term affirmed the judgment and decree of the court at special term.

A number of errors were assigned by appellant in general term, all of which are properly presented here. His counsel, however, have confined their able and exhaustive argument to the discussion of a single question, namely, the alleged insufficiency of the evidence to sustain the finding and judgment of the court at special term. It was shown by the evidence that appellee's road-bed and railroad track were constructed on and over the strip of land in controversy during the years 1867 and 1868. At that time, Joseph Campbell, the father of appellant, and under whom he claimed title, was the owner of and resided upon the real estate through which such strip of land extended, and continued to reside thereon long after appellee's road was constructed and operated, and within a short distance thereof, until he died, in 1881. It is claimed, by and on behalf of appellee, that it entered upon and took possession of the strip of land in controversy for its right of way, with the leave and license of said Joseph Campbell, and had expended large sums of money, to-wit, etc., in the construction and maintenance of its road-bed and railroad track, on, over, and along such strip of land, in pursuance and upon the faith of such license, and in the actual presence and with the knowledge and consent of the said Joseph Campbell, and had owned and operated its line of railroad thereon continuously from 1868 until the death of Joseph Campbell in July, 1881, without any objection thereto on his part. If there be evidence in the record of this cause which fairly tends to sustain the appellee's claim as we have stated it, and we think there is such evidence, it is settled by our decisions that the appellant, who claims title under said Joseph Campbell, cannot recover herein. Snowden v. Wilas, 19 Ind. 10;Lane v. Miller, 27 Ind. 534;Hodgson v. Jeffries, 52 Ind. 334;Ogle v. Dill, 55 Ind. 130;Buchanan v. Logansport, etc., Ry. Co., 71 Ind. 265;Nowlin v. Whipple, 79 Ind. 481;Simons v. Morehouse, 88 Ind. 391. In the cases cited the doctrine is declared and acted upon, which has been recognized and approved by the...